Citation Nr: 0736887
Decision Date: 11/23/07 Archive Date: 12/06/07
DOCKET NO. 06-35 449 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: National Association of County
Veterans Service Officers
WITNESSES AT HEARING ON APPEAL
Appellant and Appellant's Spouse
ATTORNEY FOR THE BOARD
A. Ishizawar, Associate Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
January 1954 to May 1955. These matters are before the Board
of Veterans' Appeals (Board) on appeal from a January 2006
rating decision of the Newark, New Jersey Department of
Veterans Affairs (VA) Regional Office (RO). In September
2007, a Travel Board hearing was held before the undersigned.
A transcript of this hearing is of record.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if any action on his part is required.
REMAND
The Veterans Claims Assistance Act of 2000 (VCAA),
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002) and the regulations implementing it apply in the
instant case. While the notice provisions of the VCAA appear
to be satisfied, the Board is of the opinion that further
development of the record is required to comply with VA's
duty to assist the veteran in the development of the facts
pertinent to his claim. See 38 C.F.R. § 3.159 (2007).
Also, the Board notes that the NPRC has certified that the
veteran's SMRs were destroyed in the 1973 fire at the NPRC.
In such circumstances, VA has a well-established heightened
duty to assist. O'Hare v. Derwinski, 1 Vet. App. 365 (1991).
The veteran served during the Korean Conflict as an
amphibious vehicle driver transporting troops, including
artillery units. In his August 2006 notice of disagreement,
and at the September 2007 Travel Board hearing, he alleged
his military occupation exposed him to gunfire, artillery
fire, and loud engine noises daily. He claims his bilateral
hearing loss and tinnitus are a result of such noise
exposure.
The veteran is not clear about the onset of his hearing loss
and tinnitus. At his November 2005 VA Compensation & Pension
(C&P) examination, he reported that his hearing problems
began approximately fifteen years before the exam. At his
Travel Board hearing, he testified his hearing loss likely
began in service as he was always asking people to repeat
themselves while his tinnitus started ten or more years ago.
Similarly, at the VA C&P examination, he reported postservice
occupational noise exposure both as a garbage collector and
as a driver of a mechanical sweeper (hearing protection
devices were not issued). However, in his NOD, the veteran
stated he was not exposed to noise in his civilian
occupations.
It is not in dispute that the veteran currently suffers from
bilateral hearing loss and tinnitus. Based upon his reported
working arrangements in service, it is also likely that he
was exposed to, at least, some noise trauma in service. What
remains to be determined is whether the current hearing loss
and tinnitus are related to his noise trauma exposure in
service.
The current record reflects that the veteran began seeking
treatment for his bilateral hearing loss and tinnitus in
March 2005. However, in testimony at the Travel Board
hearing, he indicated he first sought treatment for hearing
loss in 1990-1991. In a September 2007 statement, he
clarified that he sought treatment from an audiologist at St.
Vincent's Hospital in Staten Island, New York in October
1991. He subsequently followed up with his doctors, Dr. S.
and Dr. W. As records of the treatment he has identified may
indeed contain pertinent information, they must be secured,
if available.
Accordingly, the case is REMANDED for the following:
1. The RO should ask the veteran to
identify the provider(s) of any additional
treatment or evaluation he has received
for bilateral hearing loss and/or tinnitus
records of which are not already
associated with the claims file, and to
provide any releases necessary for VA to
secure records of such treatment or
evaluation. The RO should obtain complete
records of all such treatment and
evaluation from all sources identified by
the veteran. The RO should specifically
obtain complete records of treatment or
evaluation the veteran received for
hearing loss and/or tinnitus from St.
Vincent's Hospital in Staten Island, New
York and Dr. S. and Dr. W. In conjunction
with this development the veteran should
be advised of the provisions of 38 C.F.R.
§ 3.158(a), and that it remains his
responsibility to ensure that the records
are received if the RO is unable to obtain
them.
2. The RO should then arrange for the
veteran to be examined by an
otolaryngologist to determine the likely
etiology of his bilateral hearing loss and
tinnitus. The examiner must review the
veteran's claims file in conjunction with
the examination. Based on an examination
of the veteran and review of the claims
file, the examiner should provide an
opinion responding to the following
question: Is it at least as likely as not
(50 percent or better probability) that
the veteran's bilateral hearing loss and/
or tinnitus are related to his service, to
include as due to noise trauma therein?
The examiner should explain the rationale
for all opinions given, specifically
commenting on the evidence already of
record, including the report of the
veteran's prior VA C&P examination and the
opinion by audiologist I.K. submitted in
September 2007.
3. The RO should then re-adjudicate
the claims. If either remains denied, the
RO should issue an appropriate
supplemental statement of the case and
give the veteran and his representative
the opportunity to respond. The case
should then be returned to the Board, if
in order, for further review.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims
must be afforded expeditious treatment. The law requires
that all claims that are remanded by the Board for additional
development or other appropriate action must be handled in an
expeditious manner.
_________________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).